Citation Nr: 0005729 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 94-31 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for residuals of a laminectomy at L4 and L5, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from December 1967 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was the subject of a Board remand dated in May 1997. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected low back disability has been characterized by radiculopathy and characteristic pain with little intermittent relief. 3. The veteran's service-connected low back disability is a very substantial, but not complete, impediment to obtaining employment. CONCLUSION OF LAW The criteria for a rating of 60 percent for residuals of a laminectomy at L4 and L5 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.71a, Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A VA report of hospitalization of the veteran from September 1992 to October 1992 includes an opinion that the veteran was not employable by virtue of a combination of chronic medical problems secondary to his back injuries and characterological problems. In the reporting physician's view, it was unfeasible that the veteran would be able to maintain employment in the future at any time. The diagnoses rendered were narcotics dependence, secondary to use for back pain; personality disorder, not otherwise specified with narcissistic and paranoid features; and chronic back pain secondary to pervious injuries and surgeries. During an April 1993 VA psychiatric examination, the veteran was noted to walk with the aid of a cane in his right hand. He shifted position frequently in his chair to relieve discomfort in his back. The veteran was diagnosed as having a personality disorder, not otherwise specified, by history; and chronic low back pain. The examiner opined that the interaction of the effects of the veteran's chronic back pain and his personality disorder combine to contribute to the severity of his overall disability. During the veteran's July 1993 RO hearing, the veteran said he was not able to find employment because employers felt he was too much of a risk. The veteran and his representative asserted that VA treated the veteran for mechanical back pain and muscle spasms with heating pads and pain medication, but that the nature of the veteran's back problems had not been adequately ascertained. VA records of treatment in April 1995 reflect that the veteran had low back pain for years, with a burning sensation in the feet, with muscles aching all over. Upon physical examination, there was decreased forward flexion, back extension, and lateral rotation. There was muscle tenderness in the lumbosacral area, with moderate muscle spasm. Sensory examination revealed a mild decrease in the glove-stocking distribution. Bilateral extremity strength was 5/5 bilaterally. Deep tendon reflexes were present and symmetrical in all extremities. The treating physician's impression was chronic low back pain secondary to degenerative joint disease and spondylosis, status post lumbar and cervical laminectomies. Treatment included moist heat to the low back, proper exercise, trial of a tens unit, muscle relaxant, non-steroidal anti-inflammatory drugs as needed, and epidural injection. VA records of treatment dated May 1995 reflect that the veteran reported for treatment complaining of back pain. VA records of treatment in September 1995 reflect that he received an epidural injection for diagnosed lumbar spine stenosis. Pursuant to the Board's May 1997 remand of this case, the RO was directed to obtain any pertinent Social Security Administration (SSA) records. In October 1998, the Social Security Administration (SSA) informed the RO that the veteran was not in receipt of Social Security Disability benefits, and that the SSA had no medical records of the veteran available. During an April 1999 VA examination, the veteran was noted to be unemployed. He occasionally used a cane. He had difficulty with prolonged standing, walking, bending or lifting. He had increased radicular symptoms with prolonged walking or sneezing. Current complaints included primarily low back pain which radiated across the lumbar spine. He occasionally had right more than left-sided pain down into his feet. Upon physical examination, he was in no obvious discomfort while at rest. He sneezed during the examination and had significant radicular symptoms which lasted for about 10 minutes. Physical examination was remarkable for restricted forward flexion to about 45 degrees. He had extension to about 10 degrees. Toe and heel walking were within normal limits. He had limited right and left side bending to approximately 10 degrees. Neurological evaluation revealed 1+ reflexes in both knees and ankles. Manual motor testing was within normal limits. Circumference of the calves was symmetrical. Sensory evaluation was within normal limits. Straight leg rasing gave radicular symptoms more on the right than left. Review of X-rays showed significant degenerative collapse at L5-S1. The veteran also had lesser changes noted at L4-5. Marginal osteophytic formations were noted at these two levels as well. The impression was herniated nucleus pulposus, lumbar spine, status post surgery with residual radicular symptoms, severely symptomatic. The examiner's medical opinion was that the veteran was exhibiting findings consistent with failed back syndrome or arachnoiditis of a chronic nature. He continued to manifest radicular symptoms as well as significant mechanical low back pain, both of which would be considered secondary to the veteran's inservice injury. With regard to employability, the veteran was found to be qualified for sedentary or light duties, but the physician opined that this would require some sort of vocational retraining. The veteran was noted to be quite bright and articulate, and the physician was sure that vocational training would not be a problem if this avenue were made available to the veteran. During an October 1999 follow-up VA examination, at which time the claims file was made available to the examiner, the examiner stated that the veteran's history, functional level, and medical condition were unchanged since the April 1999 VA examination. The veteran was noted to have no concomitant medical problems complicating his function. There was no change in the condition of his skin indicative of disuse, and no indication of muscular atrophy attributed to the veteran's service-connected disability. He had subjective complaints of pain with range of motion, and had restricted range of motion because of back complaints. The veteran had evidence of diminished and weakened movement, as well as excess fatigability, but no evidence of incoordination. The examiner opined that the veteran had no nonservice-connected disabilities which aggravated or complicated his current functional impairment. Analysis Initially, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that it is plausible. Further, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected disability and has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems and 38 C.F.R. §§ 4.40, 4.45 and 4.59 require consideration of functional disability due to arthritis, weakened movement, excess fatigability, incoordination, or pain on movement. These requirements enable the VA to make a more precise evaluation of the level of disability and of any changes in the condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). 38 C.F.R. § 4.71a, Diagnostic Code 5292, pertains to evaluation of limitation of motion of the lumbar spine. Under this diagnostic code, severe limitation of motion is rated as 40 percent disabling, moderate limitation of motion is rated as 20 percent disabling, and slight limitation of motion is rated as 10 percent disabling. Diagnostic Code 5293 provides that intervertebral disc disease warrants a 20 percent evaluation if it is moderate with recurring attacks; 40 percent evaluation if it is severe with recurring attacks with intermittent relieve; or 60 percent evaluation if it is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Diagnostic Code 5295 provides that severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, is rated as 40 percent disabling. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, the condition is rated as 20 percent disabling. With characteristic pain on motion, the condition is rated as 10 percent disabling. With slight subjective symptoms only, the condition is rated as noncompensably disabling. Incomplete paralysis of the sciatic nerve warrants a 40 percent evaluation if it is moderately severe or a 60 percent evaluation if it is severe with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve, where the foot dangles and drops, with no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Pursuant to 38 C.F.R. § 4.14, entitled avoidance of pyramiding, the evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. The veteran's disability as currently manifested is best characterized as intervertebal disc disease, as rated under diagnostic Code 5293, since disc pathology has been found to be the origin of the disability. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The evidence appears approximately evenly divided as to whether the veteran has recurring attacks with intermittent relief (the criteria for 40 percent) or persistent symptoms with little intermittent relief (the criteria for 60 percent). The symptoms objectively demonstrated upon VA neurological and orthopedic treatment and examination have included marked limited of motion of the lumbar spine, radiculopathy and pain in the lower extremities, lumbar muscle spasm, mild sensory loss on one occasion, positive straight leg tests, constantly impaired gait, and pain on motion. However, at the VA examination in April 1999, the veteran had no obvious discomfort at rest, had 1+ reflexes in both knees and ankles, had no sensory loss, and had full motor strength (though he did have functional impairment due to fatigability and weakened movement). There was no atrophy or loss of tone in the calves. Nevertheless, sneezing during the examination resulted in 10 minutes of radicular symptoms, and the veteran's severe condition included chronic back failure and appears to have made difficult any form of functional movement, to include ambulation. Based on these findings, the Board finds that there is an approximate balance of evidence as to whether a rating of 40 percent or the next higher rating of 60 percent for pronounced intervertebral disc disease is warranted. Accordingly, the benefit of the doubt is resolved in favor of the veteran and a rating of 60 percent, the highest schedular rating for this disability, is granted. 38 U.S.C.A. § 5107(b). The Board has also considered the veteran's disability under diagnostic codes 5292 (limitation of motion of lumbar spine), 5295 (for lumbosacral strain) and 8520 (for paralysis of the sciatic nerve). The Board further notes that the rating criteria under Diagnostic Code 5293 explicitly take into account manifestations of pain, and rating this aspect of the veteran's disability separately under additional provisions of the rating code would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The veteran would be entitled to less than a 60 percent rating if rated solely under any of these diagnostic codes. The highest possible rating under diagnostic code 5292 or 5295 is 40 percent. A rating of 60 percent under diagnostic Code 8520 would not be warranted because the veteran does not have marked muscular atrophy. The Board has considered whether this case warrants extraschedular consideration pursuant to 38 C.F.R. § 3.321(b). To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The record does not reflect frequent periods of hospitalization due to the low back disability. The veteran has asserted that he is unable to work due to his service- connected low back disability. The medical evidence reflects that the two major factors impairing the veteran's ability to find employment are his back disabilities and his personality disorder. The Board has rated the veteran's low back disability in a straightforward manner based on the symptomatology of record. In the Board's view, the resultant 60 percent rating, the maximum schedular rating for his service-connected low back disability, adequately reflects that the veteran's low back disability by itself very substantially impairs, but does not entirely preclude, employment. The veteran was denied service connection for a personality disorder in a May 1997 Board decision, so that the Board must dissociate that part of the veteran's unemployability which is due to his personalty disorder. The VA examiner found that even with the veteran's severe low back problems, he was bright and articulate and would be capable of light or sedentary employment, albeit with some retraining -- again commensurate with the Board's assignment of a 60 percent rating reflecting that the veteran's low back disability is a very substantial, but not complete, impediment to finding employment. Accordingly, the Board declines to refer this case to the Director of Compensation and Pension for extraschedular consideration. ORDER A rating of 60 percent for residuals of a laminectomy at L4 and L5 is granted, subject to the provisions governing monetary payment of benefits. RENÉE M. PELLETIER Member, Board of Veterans' Appeals